New Term Likely To Leave Mark on Affirmative Action

The U.S. Supreme Court term starting this week could leave a
significant imprint on affirmative action and related school
policies.

In addition to weighing in on a Piscataway, N.J., schools case
involving a race-based teacher layoff, the court will consider this
fall whether to review California's Proposition 209, the ballot measure
that bars affirmative action in public education, employment, and
contracting.

In Coalition for Economic Equity v. Wilson (Case No.
97-369), civil rights groups are asking the justices to strike down the
measure, which bars the state and local governments from granting
preferential treatment based on race, sex, color, ethnicity, or
national origin.

California Superintendent of Public Instruction Delaine Eastin has
filed a brief urging the high court to take the case, saying
Proposition 209 has cast doubt on the legality of voluntary
desegregation and programs aimed at helping minorities and girls. "The
issue of whether a state can eliminate all public education programs
targeting racial minorities, including programs designed to eliminate
the effects of segregation, is one of exceptional importance," Ms.
Eastin wrote.

So far, the high court has granted review to only a handful of cases
of interest to educators for the term that began Oct. 6. Besides the
Piscataway case, the justices just last week agreed to hear an appeal
from Texas on whether the state must get federal approval under the
Voting Rights Act of 1965 before assigning teams to oversee troubled
school districts. Educators are also following other cases that could
result in significant rulings on employment and local government law.
("Court Accepts Voting-Rights Case Involving
School Takeover Law," in This Week's News.)

Harassment, Immunity

In Oncale v. Sundowner Offshore Services Inc.(No.
96-568), the court will examine whether Title VII of the Civil Rights
Act of 1964, the main federal employment-discrimination law, covers
instances of alleged sex discrimination between workers of the same
sex. The case involves alleged physical and verbal harassment of an
oil-rig worker by his male colleagues.

Besides school districts' interest in Title VII developments, the
dispute's outcome could have an impact on the growing number of cases
involving student sexual harassment of other students. That is because
the Department of Education takes the position that the body of law
developed under Title VII sets the framework for student-harassment
lawsuits filed under Title IX of the Education Amendments of 1972,
which bars discrimination based on sex in schools receiving federal
funds.

Gwendolyn H. Gregory, the deputy general counsel of the National
School Boards Association in Alexandria, Va., noted that the Education
Department's office for civil rights contends that same-sex harassment
in schools is a potential violation under Title IX. "That turns all
kinds of harassment into a Title IX violation," said Ms. Gregory, whose
group disagrees with the OCR's interpretation.

The OCR does not argue that Title IX prohibits discrimination based
on sexual orientation. In Oncale, the high court will review a
federal appeals court ruling that categorically rejected the idea of
same-sex harassment under Title VII.

The NSBA is also following a case from Massachusetts that will
determine whether local officeholders are entitled to absolute immunity
from federal civil rights lawsuits for their legislative actions.
Bogan v. Scott-Harris (No. 96-1569) involves a lawsuit
against the Fall River, Mass., City Council over a budget vote that
eliminated an administrator's job. A federal appeals court said
individual local legislators cannot be sued in federal court over acts
that are considered legislative, such as the adoption of a budget.

Ms. Gregory said that when school board members vote on school
policies, "that is in the nature of a legislative act."

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